Judge: Probation trial could run for two months

Monday

May 5, 2014 at 5:55 PMMay 5, 2014 at 6:04 PM

Andy MetzgerState House News Service

BOSTON — The criminal trial against three former top officials in the state’s probation department began Monday with federal Judge William Young instilling to the packed jury pool the important role they play in proceedings expected to take two months.

The trial, which could feature testimony from state lawmakers and judges, is scheduled to unfold during a busy period of lawmaking on Beacon Hill, and could run through the June 13-14 convention in Worcester where Democrats plan to nominate candidates for the fall elections.

All of the current and former elected officials on the prosecution’s potential witness list are Democrats. Former Commissioner of Probation John O’Brien, his former first deputy Elizabeth Tavares and former deputy William Burke III all face charges of racketeering, mail fraud and bribery for allegedly rigging hiring and promotions and installing applicants with political backing into jobs as part of an effort to maintain their positions and increase the department’s budget, which is set by the Legislature.

While they may be called as witnesses and their testimony could shed light on some of government’s inner workings, no current or formal lawmaker has been charge of wrongdoing in the case.

Before jurors filled out questionnaires Monday, Young expounded on the “direct democracy” at work in the state’s many open town meetings, and said the judiciary still uses a form of it, as judges and jurors are the only constitutional officers in that branch of government.

“You are here potentially to serve as a constitutional officer,” Young told the 154 people assembled in the jury pool at the Moakley Courthouse Monday morning. He said, “In the judicial branch of government there is preserved in its most fresh form . . . there is preserved direct democracy.”

Young said he expects the case to “take the better part of two months to try,” and said the jury could be selected and sitting for opening arguments on Wednesday “at best.”

Young told jurors the case is “primarily” about fraud, and told the lawyers it has the potential for “sliding over” into bribery.

“I’m going to emphasize in my pre-charge that political patronage is not a crime,” Young told the lawyers, defendants and others assembled in the courtroom after the speech to the jurors. He said he would make clear that violation of the department’s manual is also not a crime.

The three are accused of pretending to conduct a legitimate hiring process while secretly steering jobs to those connected to the most powerful members of the House and Senate - charges they have denied, pleading not guilty.

State court judges participated in interviews, where probations officials allegedly manipulated their own scores to move along favored candidates, even if they were not the most qualified. Following an expose by the Boston Globe, a 2010 report by independent counsel Paul Ware, who was hired by the courts, found that between 2006 and 2009 lawmakers funded probation by $25.4 million more than the Trial Court had requested for it, and found that politically sponsored applicants who also donated to lawmakers who recommended them had better odds for success at landing jobs.

Standing before the crowd of potential jurors, Young quoted from the Constitution and John Adams and told them that the federal trial court in Massachusetts is the first of its kind in the country, which now houses 94 such trial courts. There will be 12 jurors and four alternates.

“They are innocent people,” Young said after the three defendants stood in introduction to the jury pool. “They are truly innocent. You don’t hold anything against someone simply because we’ve gathered here and we’re going to have a trial.”

Young noted the case has received media attention, and said jurors would not be automatically excluded if they have heard about it.

“We’re not looking for hermits,” Young said.

The trial will meet from 10 a.m. to 2 p.m. on Mondays and 9 a.m. to 1 p.m. the other days of the week, Young said. The attorneys plan to reconvene Tuesday morning where Young will interview and seat the jurors selected for a “second interview.”

The prosecution will receive eight “pre-emptory” challenges to seated jurors and the defense will get 12. Pre-emptory challenges can be used by either side, in addition to challenges with cause, to remove jurors.

Out of view of the jury, Young also issued rulings that the Probation Department is part of the judiciary and O’Brien did not have “sole and exclusive” hiring authority, saying if anyone argues to the contrary he would correct them.

Assistant U.S. Attorney Fred Wyshak advised Young that he might want to issue a formal order on his decision to sever some of the charges from the trial getting underway, and Young asked Wyshak to draft one.

The jurors’ questionnaires will remain confidential through eight days after the verdict. Burke defense attorney John Amabile objected to the notion that the defendants could go through a second trial on similar charges. He also received permission from Young to bring a jury consultant, who is not an attorney, to sidebar conferences with the judge about potential jurors.

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